Case No.

14-3882
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________________________________________________
MARK BALSAM; CHARLES DONAHUE; HANS HENKES; REBECCA
FELDMAN; JAMIE MARTINEZ; WILLIAM CONGER; TIA WILLIAMS;
INDEPENDENT VOTER PROJECT; COMMITTEE FOR A UNIFIED
INDEPENDENT PARTY INC., doing business as
INDEPENDENTVOTING.ORG,
Plaintiffs-Appellants
vs.
SECRETARY OF THE STATE OF NEW JERSEY,
Defendant-Appellee
__________________________________________________________
On Appeal from United States District Court
for the District of New Jersey
BRIEF OF AMICUS CURIAE EQUAL VOTE COALITION IN SUPPORT
OF REMAND TO THE DISTRICT COURT
David Frohnmayer, OSB #710015
Mark Frohnmayer
544 Blair Blvd.
Eugene, OR 97402
Attorney for Amicus Curiae Equal Vote
Coalition

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CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1, Amicus Equal Vote
Coalition makes the following disclosure:
1.

Amicus is not a publicly held corporation or other publicly held entity.

2.

Amicus has no parent corporation.

3.

No publicly held corporation or other publicly held entity owns 10%

or more of Amicus.

4.

Amicus is not a trade association.

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TABLE OF CONTENTS
Page
STATEMENT OF IDENTITY, INTEREST, AND AUTHORITY TO FILE ......... 1
SUMMARY OF ARGUMENT ................................................................................ 2
ARGUMENT ............................................................................................................ 3
I.

II.

INTRODUCTION .......................................................................................... 3
a.

THE LEGAL MANDATE FOR EQUALITY OF VOTE

WEIGHT .............................................................................................. 3

b.

DEFINITION OF THE VOTE ............................................................. 5

c.

THE TEST OF WEIGHT EQUALITY................................................ 6

THE PRESENT FRANCHISE PERPETUATES INEQUALITY IN

ITS STRUCTURE .......................................................................................... 7
a.

RANK ORDER VOTING IS INHERENTLY UNEQUAL................. 8

b.

PARTISAN SEGREGATION IS INHERENTLY UNEQUAL ........ 10

III.

THE PATH FORWARD MUST ADHERE TO AS NEARLY AS IS

PRACTICABLE TEST............................................................................... 13

IV.

CONCLUSION ............................................................................................ 15

STATEMENT OF RELATED CASES .................................................................. 16

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TABLE OF AUTHORITIES
Cases

Page(s)

Gray v. Sanders
372 U.S. 368, 381 (1963) ................................................................................. 3, 4
Reynolds v. Sims
377 U.S. 533, 555 (1964) ................................................................................. 5, 9
Wesberry v. Sanders
376 U.S. 1, 18 (1964) ................................................................................. 4, 5, 14
Other Authorities
James Madison, The Federalist No. 57 ................................................................ 4, 7

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STATEMENT OF IDENTITY, INTEREST, AND AUTHORITY TO FILE
David Frohnmayer is a member of the Oregon State Bar, the California State
Bar (inactive), and the United States Supreme Court Bar. He is President Emeritus
and Professor of Law Emeritus at the University of Oregon. He served as dean of
the University of Oregon School of Law (1992-1994).
Mr. Frohnmayer has served as an Oregon State Representative (1975-1980)
and as Oregon Attorney General (1981-1991) and was elected President of the
National Association of Attorneys General (1986-1987) and received that
organizations Wyman Award as the nations outstanding Attorney General in
1987. Mr. Frohnmayer twice won the American Bar Foundation Weaver
Constitutional Law Essay Competition (1972, 1974) and the American Bar
Association Ross Essay Award (1980).
Mr. Frohnmayer serves as Of Counsel to the Oregon law firm of Harrang
Long Gary Rudnick P.C., however this brief is submitted entirely in his capacity as
a scholar of constitutional law and of election law. He has no other financial or
client interest in the outcome of this litigation, and no attorney for a party has
helped write this brief or defrayed the cost of its preparation.
Mark Frohnmayer is the founder of the Equal Vote Coalition, a grassroots
volunteer organization dedicated to true equality in the voting franchise. He served

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as the Chief Petitioner of 2014 Oregon Initiative Petition #54, the Unified Primary,
in order to bring equality to Oregons voting franchise by means of ballot measure.
This brief is filed pursuant to Fed. R. Civ.P. 29 and is accompanied by a
motion seeking leave to file. Both the amicus brief and its accompanying motion
are timely filed pursuant to an extension granted November 10, 2014.
SUMMARY OF ARGUMENT
The Supreme Court of the United States has underscored the requirement of
equality in our voting franchise, but little attention has been focused on the judicial
tests for measuring that standard. The present New Jersey closed primary system
violates the equal vote weight standard and impermissibly underwrites an official
state process that ratifies oligarchic control of voter selections.
Amicus argues for articulation of a judicial test that is consistent with
underlying democratic theory and which will insure that voters are equal to each
other in exercising the franchise that is part of their entitlement under the
Constitution.

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ARGUMENT
I.

INTRODUCTION
The Supreme Court of the United States has explicitly mandated equality in

vote weight as part of the guarantee of equal protection of the laws. This
understanding of equality has been traced to the body of the Constitution and to
American history, not merely to the later adopted Fourteenth Amendment to the
United States Constitution. Because this declaration implicates fundamental
notions of political theory, we depart from a discursive style of legal argumentation
to explore these theoretical underpinnings in diagrammatic form.
A.

THE LEGAL MANDATE FOR EQUALITY OF VOTE

WEIGHT

The Supreme Court has traced the conception of equality in the voting
franchise not just to the Equal Protection Clause of the Fourteenth Amendment, but
also as a thread that defines the essential character of the nation itself. In Gray v.
Sanders, 372 U.S. 368, 381, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963) the Court
declared:
The conception of political equality from the
Declaration of Independence, to Lincoln's Gettysburg
Address, to the Fifteenth, Seventeenth, and Nineteenth
Amendments can mean only one thing one person, one
vote.

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In that same opinion, the Court established that all who meet the basic
qualifications as voters must necessarily be afforded an equal vote that there shall
be no preferred class of voters within any geographical unit:
Once the geographical unit for which a representative is
to be chosen is designated, all who participate in the
election are to have an equal vote whatever their race,
whatever their sex, whatever their occupation, whatever
their income, and wherever their home may be in that
geographical unit. This is required by the Equal
Protection Clause of the Fourteenth Amendment. The
concept of we the people under the Constitution
visualizes no preferred class of voters but equality among
those who meet the basic qualifications.
Gray, 372 U.S. at 379-380.
In Wesberry v. Sanders, 376 U.S. 1, 18, 84 S.Ct. 526, 11 L.Ed.2d 481
(1964), the Supreme Court affirmed this notion of vote equality and traced its
definition to James Madison in No. 57 of The Federalist:
Who are to be the electors of the Federal
Representatives? Not the rich more than the poor; not the
learned more than the ignorant; not the haughty heirs of
distinguished names, more than the humble sons of
obscure and unpropitious fortune. The electors are to be
the great body of the people of the United States.
The Court specifically associated Madison's passage with the principle of one
person, one vote. Wesberry, 376 U.S. at 18.

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In that same opinion, the Court declared that equality in the vote goes further
than simple access to the franchise. The weight and worth of the citizens votes as
nearly as is practicable must be the same:
...The apportionment statute thus contracts the value of
some votes and expands that of others. If the Federal
Constitution intends that when qualified voters elect
members of Congress each vote be given as much weight
as any other vote, then this statute cannot stand.
We hold that, construed in its historical context, the
command of Art. I, s 2 that Representatives be chosen
by the People of the several States means that as nearly
as is practicable one man's vote in a congressional
election is to be worth as much as anothers.
Id. at 7.
The Court reaffirmed this notion of weight equality in Reynolds v. Sims, 377
U.S. 533, 555, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), concluding, the right of
suffrage can be denied by a debasement or dilution of the weight of a citizen's vote
just as effectively as by wholly prohibiting the free exercise of the franchise.
B.

DEFINITION OF THE VOTE

Merriam-Websters Collegiate Dictionary (11th ed. 2008) defines vote as

a usually formal expression of opinion or will in response to a proposed decision;
especially: one given as an indication of approval or disapproval of a proposal,
motion, or candidate for office.

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The voting franchise defines the boundaries of expression permitted in a
vote and contemplates the algorithm used to determine the election outcome from
the collected votes of the electors.
C.

THE TEST OF WEIGHT EQUALITY

As it has been since ancient times, the test for equality of weight is balance.
To determine whether two objects are of equal weight, they must balance when
placed on opposite sides of a balance scale.
This principle has a clear analogue in the voting franchise. The voting
franchise provides votes of equal weight to all the voters if and only if for each
possible vote expression that one voter may cast in an election, there exists another
expression of the vote that another voter can cast that is in balance such that the
outcome of an election is the same whether both or neither votes are counted.

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We know this intuitively in every
election between two candidates or on
questions of petition or referendum. If
voter A chooses the first candidate and
voter B chooses the second, their votes
exactly counterbalance, so the overall election outcome reflects the will of the
majority.
Madison, in Federalist No. 57, noted this majority preference as the first
requirement for the equal representative vote:
If we consider the situation of the men on whom the free
suffrages of their fellow-citizens may confer the
representative trust, we shall find it involving every
security which can be devised or desired for their fidelity
to their constituents. In the first place, as they will have
been distinguished by the preference of their fellowcitizens, we are to presume, that in general they will be
somewhat distinguished also by those qualities which
entitle them to it, and which promise a sincere and
scrupulous regard to the nature of their engagements.
The Federalist No. 57, at 263-64 (emphasis supplied).
II.

THE PRESENT FRANCHISE PERPETUATES INEQUALITY IN ITS

STRUCTURE
Unfortunately the voting franchise is structured in the systems of most states

in the union, including the New Jersey primary election system, in such a way as to
embody two orthogonal inequalities in the weight of the vote expressions between

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voters. Not only do these pernicious inequalities run counter to the basic
institutional requirement of equality of vote weight, they also lead quite naturally
to the hyper-partisan, special interest-dominated policy outcomes we see today.
A.

RANK ORDER VOTING IS INHERENTLY UNEQUAL

The dominant voting method used in public elections in the United States is
a system known as plurality voting, in which each voters expression is limited to
the support of a single candidate for each public office. Although this choice of
one passes the test of equal weight when there are two candidates, whenever there
are more than two candidates, the more similar candidates divide supporters' votes.
This is known commonly as vote-splitting
or the spoiler effect, but at its root it is a
fundamental inequality in the franchise:
the limit of one choice in elections with
more than two candidates creates a vote
that is impossible to balance. Consequently, voters who like one candidate
actually have more power than those who like more than one.
This inequality in the franchise has profoundly negative consequences: we
are encouraged not to waste our votes on a long-shot candidate we might really
like and instead cast support only for the lesser evil, in order that our worst
option be prevented from winning. Because this inequality compels voters to vote

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against their actual favorite candidates, it runs directly counter to the Courts
findings in Reynolds, 377 U.S. at 555, namely that:
The right to vote freely for the candidate of one's choice
is of the essence of a democratic society, and any
restrictions on that right strike at the heart of
representative government.
Further, this impulse gives a huge advantage to well-funded special interests,
in direct violation of Madisons mandate.
The lesser evil is just the more tolerable
of the two frontrunners with the biggest
financial war chests, who are therefore
most beholden to the money.
Independent candidates without big backing dont even get a fair count.
Instead they are vilified for participating, because the more support they draw, the
more likely their presence on the ballot will
spoil the outcome and result in the election of
the greater evil. The spoiler effect
inequality essentially creates our onedimensional, two-party dominated political
system.

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Plurality Voting, the limit of a single choice in elections, is the simplest
rank-ordered voting system. There are other ranking systems such as Instant
Runoff Voting that allow the voters to express support for multiple candidates in
preference order first choice, second choice, third
choice and so on. With more than two candidates, all
rank-ordered voting systems fail the equality test.
Why? Because if a voter bullet votes that is, ranks
only a single candidate in first position there is no
way to construct a rank ordering that balances that
selection.
Dr. Kenneth Arrow won a Nobel Prize for his Impossibility Theorem in
Social Choice and Individual Values (2d ed. 1963), that proved it is impossible to
construct a voting system from voters rank orders that meets all of several
fairness criteria.
B.

PARTISAN SEGREGATION IS INHERENTLY UNEQUAL

Most states have two elections each cycle. The first (primary) election
eliminates one or more candidates from consideration and advances one or more
candidates to the second (general) election. The primary election was created more
than a century ago to give voters the choice of which candidates from their major
party would be nominated to the general election. Prior to the establishment of the

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primary, the two main party candidates were chosen at party conventions or in the
smoke-filled back rooms by party bosses. Unfortunately, this effort to give more
voice to the people has created another dimension of inequality in the vote:
partisan segregation.
Here in Oregon, for example, 32.2% of
registered voters as of October 1, 2014 nearly
a third have chosen not to affiliate with a
major party according to Oregons Secretary of
State. See Voter Registration by County,
http://www.oregonvotes.gov/doc/voterresources/registration/Oct14.pdf (last visited
Dec. 4, 2014). These voters are denied the opportunity to participate in Oregons
closed primary election that eliminates all but one Democrat and all but one
Republican candidate from consideration at the states general election.
Some have made the argument that the obvious inequality presented by
denying nearly a third of the electorate a voice in the elimination of one or more
candidates from consideration is a result of
the voters own choice: that by choosing
not to affiliate with a major party, the voter
is simply choosing not to participate.

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This misunderstanding neglects the actual inequality itself, namely that
segregating the choice along the boundaries of political organization creates an
inherent inequality in the weight of the vote for ALL voters. No matter what
political affiliation a voter chooses, she cannot balance the vote expression of any
voter who does not share her same political affiliation no matter the algorithm
used for computation of the vote outcome.
This segregation inequality is exhibited clearly in a phenomenon known
politically as district safety. According to the Cook Political Reports Partisan
Voter Index, when the registration differential between political organizations
exceeds a 5% domination threshold, the district is no longer competitive or
swing between the two major party candidates in the general election plurality
voting contest. See Introducing the 2014 Cook Political Report Partisan Voter
Index, http://cookpolitical.com/story/5604 (last visited Dec. 4, 2014). In these
districts, therefore, the determinative choice of representation provided by the
voting franchise is effectively made in the primary election, only by the members
of a single party. 90% of Oregons representative districts provide one party a
registration advantage in excess of the 5% domination threshold and are therefore
safe. See Voter Registration by County, supra. Added together the 32.2% of the
electorate who choose not to affiliate with a major party and the 22.3% of the

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electorate who are in a major party but are on the wrong side of the safety
equation comprise more than half of the electorate. Id.
III.

THE PATH FORWARD MUST ADHERE TO THE AS NEARLY AS

IS PRACTICABLE TEST
The academic fields that explore voting methods and voting method analysis

have advanced considerably in the two centuries since the founding of the country,
and in the half-century since Arrow published his theorem. While all rank-ordered
voting methods are inherently unequal, a new class of voting methods has begun to
gain wide adoption that pass the test of equal weight and are not covered under the
Impossibility Theorem.
Analogues for a newer system abound. Olympic judging, product reviews
on Amazon (from zero to five stars), or the simple Like on Facebook are
examples of rating attributing to each competitor, product, or idea an
independent measure of value. For every rating a voter gives a candidate, there
exists a balancing rating: yes to a no or zero stars to anothers five. All rating
systems actually pass the test for equal weight.
Even the simplest rating system a binary yes or no, +1 or 0, support or not
lets voters communicate what no rank ordering can: which choices on the ballot
they actually approve. The ballot for this simplest rating system, also known as
Approval Voting, looks the same as the ballot for the simplest ranking system, only
with the single choice limitation removed.

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Princeton-trained mathematician Warren Smith, PhD, has characterized by

simulation more than 50 different voting systems. See Range Voting With
Mixtures of Honest and Strategic Voters, http://scorevoting.net/StratHonMix.html
(last viewed Dec. 4, 2012). According to his analysis, higher-rated voting methods
capture the top four spots as measured by both key performance measures of
voting system efficacy: propensity to elect the Condorcet Winner (the candidate
who would beat every opponent in a head to head contest) and minimization of
simulated net social regret at the outcome of the election with both strategic and
honest voters.
Recall the Courts teaching from Wesberry v. Sanders: as nearly as is
practicable, one man's vote in a congressional election is to be worth as much as
anothers. Wesberry, 376 U.S. at 7. The evolution of decision science has
provided us with several templates for voting systems that provide true practicable
equality between the voters, and those systems demonstrably provide outcomes

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that are more representative of the will of the electorate than the plurality voting
method in use in New Jersey today.
IV.

CONCLUSION
We recommend the court adopt the proposed test of balance to determine

whether the voting franchise complies with the Constitutional requirement of

equality of vote weight, and reject the state of New Jerseys segregation of the
franchise by political affiliation in the first stage as a clear violation of this test.
This case should be remanded to the District Court for the development of criteria
by which the New Jersey election system should be recast and reordered.
Dated this 8th day of December, 2014.
Respectfully submitted,

s/Dave Frohnmayer
Dave Frohnmayer, OSB #710015
Equal Vote Coalition
544 Blair Blvd.
Eugene, OR 97402
Of Attorney for Amicus Curiae Equal Vote
Coalition